13 Things Domainers Should Know About Domain Law

There has been a lot of news lately about domains that involve legal issues. The law regarding domains can be very complex, and often domainers don’t understand the consequences of this. To help you deal with these issues, here are 13 things domainers should know about domain law.

1. The Contract Rules. Most of the rights and obligations domain holders have are governed by the contract between the domain holder and the registrar. Naturally, since the registrar writes the contract, it is lopsided in favour of the registrar. A lot of times I hear people claim that their registrar scammed them, when in reality, the registrar was acting within the terms of the contract. Whenever there is a problem regarding a domain, the first thing you should turn to is not the law, but the contract between you and your registrar.

2. Your Domain Can Be Shut Down. Normally, the registrars’ contracts allows them to shut down your domain. Network Solutions recently shut down an anti-Islam film site. Enom recently shut down domains about travelling to Cuba, despite the fact that the website owner was English, lived in Spain, and offered trips to Cuba only to Europeans. (Query whether ICANN, based in the US, is breaking US law by running a Cuban ccTLD).

Of course, this is done at the registrar’s discretion, so if you’re the Ku Klux Klan, you don’t need to worry that your domain will be shut by your registrar. As well, most registrars’ agreements don’t require them to notify you in advance that they will be shutting your domain down.

3. No Such Thing As Domain Ownership. The registrars’ agreements generally don’t give domain holders any property or ownership rights in the domains they register – ie, it’s not really “your domain.”

4. US Law Overreaches International Boundaries. Even if you live outside the United States, and your registrar is outside the United States, you may still be subject to the jurisdiction of the United States, simply because the registries for many TLDs are located in the United States. Kind of like child support laws or Canadian divorce laws. Bodog learnt this the hard way. They are a British based company. They were sued in a US court, on an issue unrelated to their domains. As they were not based in the US, they ignored the case, and a default judgment was granted against them. This default judgment was then used to take their domain from them, as it was registered through a US registrar. In short, if you are doing anything controversial with your domain, I’d try to avoid any connection with the US.

5. Generics Can Be Trademarks. Just because your domain is a generic word, doesn’t mean that it is not infringing a trademark. An “apple” is more than just a fruit. This is particularly important when parking your domain. You need to be very careful about the ads that appear.

6. Registrars Will Park Your Domains. If you don’t change your nameservers when you register a domain, then chances are that your registrar will put up its own parking page. The registrar collects any revenue earned from the parking page. But if you find yourself in an UDRP due to ads from the registrar’s parking page, you’re the one who has to face the music, not the registrar.

7. Record Keeping. Keep good records of all your domain registrations, including any emails sent by your registrar. If there are ever any legal problems, you there is a good chance you will need these.

8. Private Whois. If you use the private whois service offered by your registrar, it may be difficult to prove your right to a domain. This happened in the Registerfly debacle, where customers using the privacy services had difficulty proving which domains belonged to them when the registrar collapsed. Again, the point above about good record keeping is applicable here as well.

As well, some domainers don’t seem to realize that the private whois offered by many registrars just applies to the address, telephone number and email, but not to the name of the domain holder. You should check what you are getting before you sign up for private whois.

9. Accurate Whois. Don’t use incorrect whois information on any domain of value. Your registrar can suspend your domain if you do this.

11. Hijacking. If your domain gets hijacked, a lot of registrars won’t help. Make sure you hold your domains with a registrar who takes security seriously.

12. Most Registrars Aren’t Helpful. You can’t really expect much from your registrar, especially in legal matters. You pay them $7 or $8 per year for your domain – how much effort are they going to put in for that amount of money?

13. Not Much Legal Protection. Scammers and fraudsters are everywhere. In practical terms, there is little that the law can do to help you if you are scammed. While it may be a theoretical possibility that the law can help, the international nature of domain names plus the high costs of legal proceedings in comparison to most domains means that in practical terms, there is little legal redress if something goes wrong.

CONCLUSION

So, if you’re a domainer, before you start talking about your “rights” you might as well realize that you don’t really have that many! Play it safe with your domains.

9 Comments → “13 Things Domainers Should Know About Domain Law”

Thanks! Excellent list of important points that few people are aware of. Question with regard to #3: Do the registrars then retain ownership of all domains you may register with them, or do you mean that not even the registrars have any ownership rights that can be extended to you as an individual (i.e. Is ICANN is the sole owner of everything?). I would really appreciate a brief expansion on this topic. Is there any entity out there that can actually “claim ownership” over a domain name?
Thank you.

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@Dmitry – I don’t think the law in this area is well defined, mostly because these sorts of disputes go through the UDRP rather than the courts (ie arbitration rather than litigation). I’m not sure ownership makes sense in this context. Rather, each party has a bundle various rights, many of which are determined by the various contracts they entered into (contract between registrant and registrar; contract between registrar and ICANN). You ask if ICANN is the sole owner of everything and even that is not really the case. The Registryfly debacle showed the really limited rights that ICANN has over the domain names themselves.

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